Response to Schroeder on Legal Subjectivity

I want to thank Jeanne for her lucid and forceful second post, which also responds to Tim’s earlier comments. I find her analysis a compelling way of framing the argument I make and stories I tell in the book. As in the intellectual tradition she describes, I don’t “assume the existence of the individual subject,” rather I believe “subjectivity is created through jural relations in a modern state.” In this respect, by historicizing the self, the book implicitly departs from standard liberal views. This is one of its features that, as Jeanne notes in her review, makes the book more consistent with speculative, European than liberal, American theory.

I wonder whether the divergence between Jeanne and Tim isn’t at bottom one between a legal philosopher and a scholar immersed in Hegel’s historical vision, and why Jeanne may find my account more persuasive than Tim does. “[A]lthough Hegel thinks that [the jural relations of abstract right] are the most logically primitive (which is why he discusses them before he discusses family relations),” Jeanne notes, “this does not mean that they are empirically prior. Indeed, his point is that they were empirically late to develop (which is why subjectivity and citizenship are modern inventions).”

The way that law has constituted and shaped the self over time has been an important theme in much of my work, though I haven’t articulated the theme in Hegelian terms. Nor in fact have I theorized the issue at length. Instead, I’ve sought to forward my conceptual analysis largely in narrative form. In my second book, Americans without Law (2006), I examined a group of thinkers who articulated a civic rhetoric I called “juridical racialism,” which I argued was implicated in the way the boundaries of civic belonging were constructed in the United States from the late-nineteenth through the mid-twentieth century, a period that saw certain advances in both federal power and economic modernization. Here’s how I described the relation between law and the personal biographies of the men whose stories I told—and how I described my own historical method:

“In each instance … the development of federal power facilitated by juridical racial thought was linked to a distinct mode of personal being centered on individual subjection to the idea and institutions of the state. I illustrate this bond …. [t]hrough interpretation and presentation of individual biographies and the conceptions and practices of the self [they] reveal[] … Each [figure] I examine was an anti-traditionalist modernizer at the level of both society and the human person, an individual who attempted not only to further the progressive advancement of social and economic life, but also to transform his own personal being according to the needs of the new world he envisioned. Each inscribed the social dynamics and institutional imperatives of modernity into the deepest regions of his own self, structuring his life according to those masculine attributes of ‘infinitely competent responsibility and self-cohering discipline’ characteristic of modern legal identity.”

This aside, I suspect that Tim probably would agree with the following statement of Jeanne’s, and that he would also appreciate the psychological and cultural consequences of the legal relations of equality she describes, no matter how one understands the origin and foundation of those relations. “To be equals – or more accurately, to be able to recognize others as equals,” Jeanne writes, “requires that we be individuated (recognized as our own ends and not means to the ends of the clan), and therefore separate and alienated from those we naturally love to some extent. This is the tragedy of modernity: positive freedom through individual rights comes at a great cost.”

I think we can see that cost in modern representations—valorizations—of the rule of the clan, which ironically form part of the cultural foundations of the liberal rule of law.

I’ll leave Jeanne’s comments about Adam Smith for further consideration, but I imagine Frank Pasquale found them interesting.